Dear Colleagues,

First of all, we'd like to thank the Vancouver Canucks for a fantastic Stanley Cup run! Despite a heartbreaking game 7 loss, the hope, camaraderie, pride and joy the team inspired in the city was truly amazing. At the end of the day, hockey is just a game (though a religion to some!), but the work the players do off the ice - getting involved in the community, visiting sick children in hospitals, donating time and money to local charities - these are the things that make our players heroes. Thank you Vancouver Canucks for a great season!

Unfortunately, not everyone celebrated the Stanley Cup run with such enthusiasm. A group of angry and misguided people planned to wreak havoc on Vancouver streets, regardless of a Canucks win or loss. Many of their shameful acts of destruction, looting and vandalism were caught on video and have been broadcast locally and internationally via news outlets, YouTube and various social media.

We were asked a very interesting, hypothetical (yet possible) HR question - Can an employer fire an employee who is captured on film participating in the Stanley Cup vandalism?

In this edition of HR Smalltalk, we'll discuss this question in greater detail.

A special thank you to the police, firefighters, health care workers and the hundreds of Good Samaritans who fought to protect our city and restore order to Vancouver.

Warm regards,

Cissy Pau
Principal Consultant
Clear HR Consulting Inc.


MY EMPLOYEE IS AN IDIOT - CAN I FIRE HIM?

On the evening news after the Vancouver Canucks' loss in the Stanley Cup Finals, you watch in horror as hooligans vandalize Vancouver city streets. You feel embarrassed and ashamed of what thugs have done to ruin the great reputation and image of your city, your hometown. You can't believe people can do such a thing. You're watching footage of a crowd setting a car on fire when you see one of your very own employees in the crowd, instigating the appalling behaviour. Within minutes, you receive multiple emails from other staff who saw the same story.

As an employer, you face a dilemma. You're horrified that one of your own staff has done something so atrocious. You want to fire him on the spot. On the other hand, the employee is on his own personal time when he commits these crimes, and there's nothing he's doing which identifies him with your company. What consequences may there be for you, the employer, if you terminate his employment with cause after completing a thorough investigation?

From a legal perspective, there is certainly precedent that has been set where employees' off-duty conduct have been grounds for dismissal. Dismissals due to derogatory comments about one's employer, co-workers and customers on an employee's personal blog and Facebook postings have been upheld. Criminal behaviour and off-duty conduct which is unrelated to the employer, but which can cause damage to an employer's reputation or cast doubt as to an employee's honesty or integrity has been found to be grounds for termination with cause; for example, a teacher charged with possession of child pornography or an insurance company manager charged with insurance fraud.

Despite the various examples of cases where dismissals have been founded, proving just cause for terminations can be very difficult. It can be extremely difficult for an employer to prove that inappropriate after-hours conduct has negatively impacted the company's reputation. Justifying why dismissal is the appropriate consequence as opposed to a warning, a suspension, or a lesser form of punishment can often be a challenge. The risk for employers is potential wrongful dismissal claims and, in certain circumstance, being required to reinstate employment.

However, in addition to the legal perspective of terminating a foolish employee, employers also need to look at what the "right" thing to do is from an ethics and values perspective, as well as from an employment brand perspective.

Companies spend a tremendous amount of time, money and energy positioning themselves as a great place to work and a great provider of goods and/or services. If an employee publicly commits a disturbing act of violence, what impact will that have on the company's brand? How will other employees, prospective employees, and customers feel if they know that a company employs a vandal, whether they are criminally convicted or not?

For example, there was TV footage of a nicely-dressed, young man smiling as he looted cosmetics from a department store. He was told he was being filmed and bystanders were urging him to do the right thing, telling him that he's better than this, and to return the products. He didn't.

Some questions which immediately come to mind:

• What if that young man was one of your company's managers or a salesperson who interacts with your key customers?


• What if you lose business as a result of your customer seeing the employee?


• What if your other employees are so disgusted with the offender's behaviour that they don't respect him anymore?


• What message are you sending to your staff in terms of your values and ethics if you don't take some form of action against the employee?


• Are you really employing the best of the best, providing the best service, if you allow him to continue employment?


• By continuing employment, are you saying that you hire employees whose morals, ethics and integrity may be questionable?

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